19. October 2018, 15:29 UhrFMLASteve PalazzoloComments Off on Why? Care for a Parent with a Serious Health Condition

I’m running out of Jerrod posts. I may actually have to start working on this thing again. And that is a bummer.

So after a quick recess to discuss how long employees may take leave, we are back on the issue of reasons why eligible employees may be entitled to leave. This time we are discussing leave to care for a parent.

(a) General rule. An eligible employee is entitled to FMLA leave if needed to care for the employee’s parent with a serious health condition. Care for parents-in-law is not covered by the FMLA. See § 825.122(c) for definition of parent.

29 CFR § 825.201(a)

Well that’s pretty explicit, an eligible employee may take FMLA leave to care for a parent with a serious health condition, but not for an in-law. Previous posts such as the one here have discussed what qualifies as a serious health condition, but let’s make sure we know what a parent is. I know, questions you never thought you would actually need to ask, but hey that’s the law for you.

(c) Parent. Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (d) of this section. This term does not include parents “in law.”

29 CFR § 825.122(c)

Not too complicated, a parent is generally what someone would expect a parent to be. But there is that crazy Latin phrase that has popped up a couple of other times in this blog: “in loco parentis.” As a reminder for those who don’t read and write a dead language, this translates to “in the place of a parent.” FMLA gives us the following definition:

(3) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

Therefore, someone is considered a parent under FMLA if that person cared for and financially supported the eligible employee on a day-to-day basis when the employee was a child.

Caring for a parent is one of those things that falls within the 12 workweeks allotted for leave under 29 CFR § 825.200(a)(3), but don’t forget that those 12 workweeks must split between all of the reasons that an eligible employee may be entitled to leave under § 825.200(a). To add some additional confusion to the mix, if an employee and the employee’s spouse work for the same employer and are both entitled to FMLA leave, those 12 workweeks may have to be split between them.

(b) Same employer limitation. Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where the spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a parent, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. See also § 825.127(d).

29 CFR 825.201(b)

The last couple sentences are really important because it makes it clear that even though spouse employees may have to share the 12 weeks for certain leave related reasons, such as caring for children or parents, other leave related reasons aren’t shared between the spouses. Instead, these are counted individually based on that spouse’s own amount of time actually taken off, rather than the time taken off by the other employed spouse.